Litman: Trump just bought more frustration

by Harry Litman/The Washington Post

Friday

Aug 23, 2019 at 4:34 AM

In its announced plan to ask a U.S. district court judge on Friday to terminate the Flores Settlement Agreement, which for nearly three years has stymied a key part of the Trump agenda on immigration, the administration has bought itself 18 to 24 months of litigation with prospects for success that are cloudy at best.

The Flores agreement was reached in 1997 to settle a long-standing class action brought on behalf of immigrant children in detention. Most important among the many provisions in the 28-page agreement, the settlement requires the government to release detained children as soon as possible, and to care for them in safe, clean and appropriately licensed shelters and facilities while they are in government custody.

The agreement has been a burr under the saddle of Trump's immigration policy from the outset. As interpreted by the courts, Flores forbids the government from detaining children for more than 20 days; thus, children must either be separated from their parents (which has exposed the government to fierce criticism and may be illegal) or the entire family must be released in advance of a hearing to address their claims of refugee status. For that reason, critics of the agreement say it effectuates a "catch and release" regime under which immigrants are freed before their hearing dates, often never to return.

The Trump administration moved last year for permission to detain children longer than 20 days as a way out of this restriction, but Dolly Gee, the U.S. district judge in California overseeing the Flores case, rejected the motion, and the U.S. Court of Appeals for the 9th Circuit later affirmed that decision.

The Trump administration has responded to that court defeat by preparing a new regulation. By its terms, it would permit the administration to detain families in residential centers (which needn't be state-licensed, as required under Flores) for as long as it takes their immigration cases to be decided, and also would loosen the required standard of care.

The administration sent the regulation out for notice and comment in September 2018, and it will issue the final version, along with the motion to terminate the agreement, on Friday. Barring a court challenge, it would go into effect in 60 days.

That court challenge, however, is assured - and will be potent.

In general, there are two ways to terminate a consent decree: either show substantial compliance or show changed circumstances. We already know from the most recent litigation that the administration cannot show substantial compliance. A new statute from Congress would probably amount to changed circumstances.

But a federal regulation, even assuming it complied with all the administrative requirements for such enactments, does not have the same legal effect.

That is because the settlement agreement itself - which is, in effect, a contract between the class-action plaintiffs and the government - sets the terms for when a regulation can properly bring an end to the court oversight that the agreement institutes.

And what it provides is that the administration can terminate the agreement through promulgation of final regulations "implementing" the agreement, as interpreted by the district court. It means that the question before Gee will be whether the new regulation actually implements the settlement.

The government has tried valiantly to style the regulation as a mere implementation of the prior agreement, but the fairly drastic changes to the detention limits and standards of care undercut this argument.

Indeed, a study by the Congressional Research Service concludes that the proposed regulation diverges from the original agreement in at least the standards of care and the license requirement for detention facilities.

Given Gee's previous rebuffs of the government's efforts, the administration faces an uphill battle in persuading her that the substantial changes merely "implement" the prior agreement.

Assuming an adverse ruling, the case would proceed to the 9th Circuit, where court rules make it likely that the same panel of judges would retain the case, and likely be disinclined to rule for the administration.

That would leave the Supreme Court, of course, where the administration's prospects would be brighter. But if the court takes the case, it would probably add up to another year to the clock.

It may be that either for political reasons, or because it had no better legal recourse, the administration felt it had to adopt the regulation and use it to move to terminate Flores. But as a practical matter, the best it can hope for is protracted litigation for a far-from-assured result.

In contrast to other areas in which Trump has had only to command executive branch officials or cow members of Congress, here, for perhaps his most important policy priority, he has the pesky courts to contend with, and they promise him more frustration for a good long time.

Harry Litman is a former U.S. attorney and deputy assistant attorney general.

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